Supreme Court accepts Texas abortion law case

November 13, 2015

Photo: Jennifer Whitney /New York Times

The Whole Woman's Health Clinic in McAllen, the only clinic south of San Antonio. The Supreme Court on Nov. 13, 2015, agreed to hear the first major abortion case since 2007 in a challenge to a Texas law that would leave the state with about 10 abortion clinics, down from more than 40.

The Whole Woman's Health Clinic in McAllen, the only clinic south...

The Supreme Court on Friday agreed to hear a challenge to a Texas law that would leave the state with about 10 abortion clinics, down from more than 40. The court has not heard a major abortion case since 2007, and the new case has the potential to affect millions of women and to revise the constitutional principles governing abortion rights.

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“Texas is the second-most-populous state in the nation — home to 5.4 million women of reproductive age,” abortion providers challenging the law wrote in their brief urging the court to hear the case. “More than 60,000 of those women choose to have an abortion each year.”

The case concerns two parts of a state law that imposes strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

Other parts of the law have already caused about half of the state’s 41 abortion clinics to close. If the contested provisions take effect, the brief said, the number of clinics would again be halved.

The challengers’ brief said that the law “would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy.” The remaining clinics would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.

“There would be no licensed abortion facilities west of San Antonio,” the brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.”

The case, Whole Woman’s Health v. Cole, No. 15-274, could provide the Supreme Court with an opportunity to clarify its 1992 decision in Planned Parenthood v. Casey, which said states may not place undue burdens on the constitutional right to abortion before fetal viability. The court said undue burdens included “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Texas legislators said that the contested provisions were needed to protect women’s health. Abortion providers responded that the regulations were expensive, unnecessary and a ruse intended to put many of them out of business.

In urging the Supreme Court not to hear the case, Ken Paxton, Texas’ attorney general, quoted from an earlier opinion. The justices, Paxton said, should not turn themselves into “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

The lower courts are divided over how much deference lawmakers’ assertions about health benefits deserve, and whether courts must test the reasons offered for abortion legislation against the available evidence.

In June, the 5th U.S. Circuit Court of Appeals, in New Orleans, largely upheld the contested provisions. A panel of the court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

The court said women in West Texas could obtain abortions in New Mexico, a ruling at odds with one from a different panel of the same court that said Mississippi could not rely on out-of-state abortion clinics in defending a law that would have shut down the state’s only clinic.

The appeals court declined to grant the challengers a stay, but the Supreme Court temporarily blocked the ruling later that month. The vote was 5-4, with Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. voting to deny the stay.

That was the second time the Supreme Court issued a reprieve to the clinics. In October, the court allowed more than a dozen clinics in the state to reopen after an earlier appeals court order would have closed them.